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Report No. 139

Chapter IV

Pressing Need for Amendment with Urgency

4.1. The compulsive case for amendment.-

From the discussion in the preceding Chapters, it is clear that in the present state of the law, there is manifest discrepancy between the provision in the Civil Procedure Code and the connected and complementary provision in the Limitation Act. An application to set aside an execution sale under the Code of Civil Procedure, 1908 must be accompanied by the necessary deposit as provided in Order XXI, rule 89(1) of Code of Civil Procedure. But the prescribed limitation periods for making application and for making the deposit are different being 60 days and 30 days respectively.

In theory as well as in practice, it is manifestly clear that if an application to set aside has to be accompanied by a deposit of the requisite amount it is pointless to give 60 days to make the application if the deposit has to be made within 30 days. It is also pointless because the felt need of the time rooted in the experience is that Banks take more than 30 days to sanction loans to judgment-debtors seeking to avail of the benefit of Order XXI, rule 89, C.P.C. If Deposit cannot be made within 30 days on account of the difficult, built in the Banking system what use is loan give him 60 days to make the application to accompany the deposit the bottleneck arrives in obtaining the loan within 30 days, not in drafting the application in 30 days.

That is why the law prior to 1976 provide for identical period for deposit as well as making application. The same pattern was needed to be followed in effectuating the intention of the Legislature to grant 60 days to the judgment-debtor to secure the loan which intention was explicitly set out in the Objects and Reasons clause.1 The need, is, therefore, manifest and the Courts have been repeatedly stressing it accordingly.

1. Clause 102 of Notes on Clauses, Bill No. 27 of 1974, the Code of Civil Procedure (Amendment) Bill, 1974, published in the Gazette of India (Extraordinary), dated April 8, 1974 in Part II, section 2.

Urgent need to amend Order XXI, Rule 92(2) of the Code of Civil Procedure to remove an anomaly which nullifies the Benevolent Intention of the Legislature and Occasions Injustice to Judgment Back

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